U.S. v. Glantz, 86-1735

• Decision Date: 02 February 1987
• Docket Number: No. 86-1735,86-1735
• Citation: 810 F.2d 316
• Parties: UNITED STATES of America, Appellant, v. Ronald H. GLANTZ and Anthony J. Bucci, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 316

810 F.2d 316

UNITED STATES of America, Appellant, v. Ronald H. GLANTZ and Anthony J. Bucci, Defendants, Appellees.

No. 86-1735.

United States Court of Appeals, First Circuit.

Argued Dec. 2, 1986.

Decided Feb. 2, 1987.

Christopher G. Caldwell with whom John M. Campbell, Criminal Div., Dept. of Justice, Stephen S. Trott, Asst. Atty. Gen., Washington, D.C., and Lincoln C. Almond, U.S. Atty., Providence, R.I., were on brief, for appellant.

Robert B. Mann with whom Anthony J. Bucci, Jr., Providence, R.I., was on brief for defendants, appellees.

Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.

COFFIN, Circuit Judge.

This case requires us to make a particularly difficult determination: whether the district court erred in deciding that defendants Ronald Glantz and Anthony J. Bucci were entitled to a new trial because of improprieties in the government's closing and rebuttal arguments. After a close and careful scrutiny of the record, we conclude that the district court, although understandably concerned about "[t]he fundamental rights at issue," nevertheless erred when it granted the new trial. We therefore reverse.

I.

The indictment in this case charged defendants with extorting $77,350 from James Notarantonio through a kickback scheme involving Notarantonio's lease of garbage trucks to the City of Providence, Rhode Island. At the time of the alleged extortion, defendant Glantz was the City Solicitor of Providence and defendant Bucci was an attorney in private practice. Bucci's brother-in-law, Clement Cesaro, was then director of the Providence Department of Public Works, a position he obtained with Bucci's assistance.

The government's evidence at trial was presented primarily through Notarantonio's testimony. Notarantonio testified that Glantz solicited from him the lease used in the kickback scheme, and that Bucci was able to arrange for an inflated contract between Notarantonio and the city because of the position held by Bucci's brother-in-law Cesaro at the Department of Public Works. The government's evidence also showed that Cesaro departed from normal city procedures when he requested unlimited discretion to negotiate the garbage truck lease with Notarantonio. The lease itself also reflected a deviation from the norm, lacking a signature line for the mayor and instead containing Cesaro's signature. The government also presented charts to the jury showing the correlations by date and amount of seventeen payments from the City to Notarantonio and eight supposedly related payments from Notarantonio to Bucci.

During cross-examination of Notarantonio, Bucci's attorney sought to establish that Bucci had performed legal and consulting services for Notarantonio for which he earned the $77,350. The defense also presented the testimony of a number of other witnesses, some of whom discussed work Bucci supposedly did for Notarantonio. The government sought to discredit the legal fees theory, particularly emphasizing that Bucci had no records of such work. The government read into evidence sworn testimony given by Bucci before the Securities and Exchange Commission in 1983, in which Bucci responded to a subpoena duces tecum for the production of records of work done for Notarantonio or Notarantonio's company by turning over documents showing only unreimbursed expenses of less than a thousand dollars.

Defendants were convicted after a three-week trial of conspiracy to extort kickback payments from Notarantonio and of the substantive crime of extorting those payments. Defendant Bucci also was convicted of conspiracy to conceal the kickback scheme from the Internal Revenue Service and of preparing two false documents for presentation to the IRS. Defendants moved for a new trial on four grounds: insufficient evidence, inadequate jury instructions, grand jury abuse, and closing and rebuttal arguments by the government that impermissibly shifted the burden of proof and commented on the defendants' failure to take the stand. The district court rejected the first three of these grounds, but granted a new trial in the belief that the prosecutor's arguments improperly influenced the jury. On appeal, the government claims that there was nothing improper in its argument and, even if there was some impropriety, any error was either cured through instruction or harmless.

II.

We preface our discussion with a description of the allegedly offending prosecutorial statements. Shortly after the prosecutor began his argument, immediately after he detailed the charges listed in the indictment, he made the following comments:

You must decide, ladies and gentlemen, that money $77,350, it's either legal fees or kickbacks. There's no other alternative. It's one or the other. Legal fees or kickbacks. And you have to make that decision."

This theme--"legal fees or kickbacks"--was raised repeatedly during the closing statement, and much of the prosecutor's argument was directed toward attacking the notion that the money could be legal fees. In evaluating the evidence presented by the defense that the payments were legal fees, the prosecutor posed the questions, "Who else did you hear from? Who else did the defense call on this issue of legal fees?" The prosecutor specifically honed in on the defendants' failure to produce documents showing that the money was legal fees. At one point, for example, the prosecutor stated:

They [defendants] bring in a six year old phone bill, ladies and gentlemen. But in 1983 they can't produce any records for the S.E.C. about the work that he did. Not a one. If such a file existed she [Bucci's secretary] would have guarded it with her life. As would any lawyer.

After an objection by defendants' lawyers based on shifting the burden of proof, and a brief curative instruction by the court, ¹ the prosecutor continued:

Ladies and gentlemen, isn't it obviously true, lawyers don't throw out their research, they don't throw out their final work product. It doesn't make sense. She [the secretary] told you later he did other work involving exporting or importing for another client. If you throw it out after you do it once you've got to start from scratch again. Nobody does that, ladies and gentlemen. You saw this man during the course of this trial, why he's doing it right now, even as we speak. Notes, every day during the course of this trial he took notes. Paper, paper, paper, that's what lawyers are all about, ladies and gentlemen. But he doesn't have a document. It doesn't make any sense. You know, ladies and gentlemen, we're talking about $77,350 worth of allegedly legal fees. Now, we don't know what Mr. Bucci charged per hour then. We don't know. If it were $100 an hour, you're looking at 773 hours. It's almost 20 weeks, that's five months of legal work. No files, no research, it's just unbelievable ladies and gentlemen, but that's what this case is all about. Legal fees or kickbacks.

The prosecutor then made a few more remarks denigrating the legal fees defense before concluding his argument. After a short recess, defendants' counsel moved for a mistrial on the ground that the prosecutor had impermissibly "shifted the burden throughout the argument." The district court denied the motion, but gave the following cautionary instruction to the jury:

You know, Members of the Jury, I told you in the beginning and I tell you again, that you are the judges of the facts in this case and you alone decide what the facts are. If counsel in argument refer to facts and you have no recollection of them, or there may be a challenge as to whether such facts were said. Well, if they're not in the record and you don't remember them, they just can't be. You have to recall the facts, you have to find the facts, independent of what counsel has told you. And so it is on the burden of proof. I told you from the beginning that the burden is on the government to prove the case in all its respects. And these principles you have to keep in mind when you're in your jury room, as you listen to these arguments. All right, let us proceed.

The emphasis on defendants' failure to produce records was repeated, and objected to twice more during the prosecutor's rebuttal argument. In attempting to rehabilitate the credibility of Notarantonio, the prosecutor suggested that it would be implausible for Notarantonio to have fabricated the kickback story if the money were actually legal fees because legal fees would be easy to prove.

You know, there's one other thing that I find very interesting, the notion that Mr. Notarantonio made up a lie that these were in fact legal fees, these checks, but that he decided he was going to lie about that. What a crazy thing to lie about. Now, Ladies and Gentlemen I don't know if any of you have ever been to lawyers, but you've certainly been to other professionals, you've certainly been to doctors, you've certainly been to dentists. Doctors, and lawyers, and Dentists, they don't have trouble showing what work they did and when they did it. Why they were able to bring in records from six years ago for Doctor Murray--

Defendants' lawyers then objected, referring to "the same objection," the improper shifting of the burden of proof. The court gave another brief cautionary instruction, reminding the jury of the government's burden of proving the case beyond a reasonable doubt and noting that the "[d]efense doesn't have to prove anything or disprove anything." The prosecutor then continued:

Thank you, your Honor. We accept that 100%, the government has the full burden here. My point is a simple one. If Mr. Notarantonio is telling a lie, if those were in fact legal fees, he was taking a big risk because he had to assume that if those were legal fees, which is the contention, that if those were legal fees, boy he could be blown right out of the water, it would be very simple to show that those were legal fees, and to establish that he was lying. It doesn't make sense that he'd lie about such a...